United States District Court, M.D. Florida, Tampa Division
IN THE MATTER OF: LUHR BROS., INC., for Exoneration from or Limitation of Liability, Plaintiff-Petitioner.
REPORT AND RECOMMENDATION
G. WILSON UNITED STATES MAGISTRATE JUDGE.
Willie J. Richardson, Jr., has filed a Motion to Dismiss
and/or Transfer Venue (Doc. 14), arguing that the plaintiff s
limitation action should be dismissed for improper venue in
light of his earlier filed and related action. Upon
consideration of the motion and responsive pleadings,
arguments made at hearing, and post-hearing supplemental
memoranda, I recommend that the motion be granted in part and
this case be transferred to the United States District Court
for the Southern District of Texas, Galveston Division.
August 30, 2018, Willie J. Richardson, Jr., filed suit
against Luhr Bros., Inc. (Luhr) and Bolivar Offshore
Services, LLC (Bolivar) in the Southern District of Texas,
asserting claims against both defendants under the Jones Act,
46 U.S.C. 30104, and the general maritime law of
unseaworthiness (Doc. 14, Ex. A). Richardson alleged he was
seriously injured on May 31, 2018, when attempting to change
a light on a buoy marker in the navigable waters near St.
Pete Beach, Florida, while employed as a deckhand for Luhr
and Bolivar aboard the Blue Marlin, a tug boat owned by Luhr
(id., pp. 2-3, ¶¶ 5-6).
September 25, 2018, Luhr initiated this action pursuant to
the Limitation of Liability Act (Doc. I). Luhr was the
owner of the LB 148, a 24-foot long crew boat used primarily
as workboat (Doc. 1, p. 2, ¶¶ 4-5). Luhr sought
exoneration or limitation of liability with respect to an
incident on May 31, 2018, in which the LB 148 was engaged in
changing out anchor buoy lights near Pinellas County,
Florida, and "an individual working from the vessel
claims to have been injured" (id., ¶ 6). Luhr
alleged that "one person ha[d] placed [it] on notice of
claims asserted as a result of injuries allegedly sustained
in the above-described incident" (id-, ¶7). Luhr
alleged that there were no suits arising out of the incident
pending against the LB 148 (id., p. 4, ¶ 14).
January 23, 2019, Richardson filed his instant motion,
requesting dismissal of the limitation complaint for improper
venue pursuant to Rule F(9) of the Supplemental Rules for
Certain Admiralty and Maritime Claims (Doc.
Richardson argued that Luhr was required to file its
complaint in the Southern District of Texas because
Richardson had already brought suit against Luhr in that
court with respect to Luhr's claim (id., pp.3-4). In the
alternative, Richardson requested the complaint be
transferred to the Southern District of Texas (id., p. 4).
February 5, 2019, Luhr responded that it was not required to
file its limitation action in that district. It argued that
Richardson's complaint did not include a claim with
respect to which it sought to limit liability because each
claim pertained solely to the Blue Marlin, Luhr did not own
the Blue Marlin, and no claims involving the LB 148 were
alleged (Doc. 17). Luhr maintained that it properly filed its
limitation action in this district because the LB 148 had not
been arrested or attached, it had not been sued, and it was
located in this district at the time of filing (id., pp.
3-4). In the event the court disagreed, Luhr requested that
its case be transferred instead of dismissed (id-, P-
February 8, 2019, Richardson sought leave to file an amended
complaint in the Texas action to "clarify the identity
of the vessels involved in the incident. . ." (Doc. 36,
Exh. A, p. 2, ¶ 4). He added that, at the time of the
incident, he "was employed in the service of the Blue
Marlin and then was instructed to board the workboat LB 148
to assist in changing out anchor buoy lights . . ."
(id-)- The motion was granted, and Richardson filed an
amended complaint on February 11, 2019. Therein, he alleged
that he was injured while working aboard the LB 148, Luhr
owned the LB 148, and Bolivar owned the Blue Marlin (Doc. 33,
Ex. B, p. 2, ¶¶ 5-6). The named defendants, the
substantive claims, and the incident date and location were
April 11, 2019, I held a hearing on Richardson's motion.
While the issue was not raised in the motion or pleadings,
counsel were asked to address the import of relation back
under Fed.R.Civ.P. 15(c), i.e., whether Richardson's
first amended complaint related back to the date of his
original complaint. In that event, Luhr would be deemed to
have been sued as the owner of the LB 148 in the Southern
District of Texas before it filed its limitation complaint
here, and Supplemental Rule F(9) would direct that its
complaint be filed in Texas. Consequently, determining the
applicability of relation back would dictate the proper venue
provision under Supplemental Rule F(9) and, in turn, resolve
the dispute. As directed, Richardson and Luhr both filed
post-hearing supplemental memoranda (Docs. 33, 36).
issue here is whether the limitation complaint was properly
filed in this district. Supplemental Rule F(9) pertinently
provides that where, as here, a vessel has not been attached
or arrested, the complaint shall be filed "in any
district in which the owner was sued," but if "suit
has not been commenced against the owner, the proceedings may
be had in the district in which the vessel may be."
Fed.R.Civ.P. Supp. Rule F(9).
problem here is that Richardson sued Luhr in the Southern
District of Texas before this suit was filed, but he got the
name of the vessel owned by Luhr wrong. Thus, he incorrectly
alleged that Luhr owned the Blue Marlin, rather than LB 148.
However, after Luhr filed its limitation complaint in this
court, Richardson amended his complaint in the Texas action
to allege that Luhr owned the LB 148. If that amendment
relates back to the date Richardson filed his initial
complaint against Luhr in the Texas action, Supplemental Rule
F(9) would direct that Luhr's limitation complaint be
filed in Texas.
Rule of Civil Procedure 15(c)(1)(B) provides:
An amendment to a pleading relates back to the date of the